January 21, 2015

Private: Five Years Later, Citizens United Wreaks Havoc on Our Democracy

Buckley v. Valeo, Citizens United v. FEC, Democracy 21, Fred Wertheimer


by Fred Wertheimer, President, Democracy 21. Democracy 21 is a nonprofit, nonpartisan organization that works to strengthen democracy, prevent government corruption and empower citizens in the political process.                                                                    

On January 21, 2010, five Supreme Court justices rejected decades of the Court’s own precedent and a century of national policy aimed at keeping corporate money out of our elections to issue the Citizens United decision.

In issuing the decision, Chief Justice Roberts and his four colleagues wreaked havoc on our democracy and our constitutional system of representative government.

Five years later, these five justices have bequeathed the following to the American people:

  • More than $1 billion in unlimited contributions that have flowed into federal elections through Super PACs – including more than $300 million through single-candidate Super PACS used by federal candidates and their supporters to circumvent and eviscerate candidate contribution limits.
  • More than $500 million in secret, unlimited contributions that have flowed into federal elections through tax-exempt 501(c) organizations.

Citizens United has returned to federal elections massive amounts of the same kinds of money that played a central role in the Watergate corruption scandals – unlimited contributions and secret money.

In 1976, the Supreme Court in Buckley v. Valeo upheld the constitutionality of contribution limits that were enacted in response to the Watergate scandals.  The Court found that “corruption” is “inherent” in a system of unlimited contributions.  The Court also upheld disclosure on the grounds that “disclosure requirements deter actual corruption.”

In 2012, more than thirty-five years later, U.S. Seventh Circuit Court Judge Richard Posner explained the destructive impact of Citizens United.  Judge Posner, widely considered the most influential conservative judge not on the Supreme Court, said in an NPR interview:

Our political system is pervasively corrupt due to our Supreme Court taking away campaign- contribution restrictions on the basis of the First Amendment.

The Citizens United decision, written for the majority by Justice Anthony Kennedy, is based on a series of indefensible, if not astonishing, premises.

Justice Kennedy wrote that “the government’s interest in preventing quid pro quo corruption” is overridden by the corporate “speech here in question.”

In other words, the Court majority took the position that the nation’s ability to protect its constitutional system of representative government against quid pro quo corruption is trumped by the right of a corporation to make expenditures to influence elections.  

Justice Kennedy also wrote, “That speakers may have influence over or access to elected officials does not mean those officials are corrupt.”

In other words, the Court majority took the position that buying access to and influence with federal officeholders is a protected right for the nation’s corporations, as well as for wealthy individuals and other well-financed interests. The idea that buying access and influence does not have corrupting impact on officeholders is nonsense and alien to our democratic values.

Justice Kennedy also wrote, “[T]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in this democracy.”

Justice Kennedy cited no evidence or documentation for this bald assertion which has no basis in fact and which is contradicted by numerous prior Supreme Court decisions.

The Supreme Court, for example, said in Buckley, “Congress could legitimately conclude that the avoidance of the appearance of improper influence "is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent." 

With national polls showing that citizens strongly object to undisclosed money and unlimited contributions in our elections and with congressional approval ratings in the teens, it is difficult to fathom what led Justice Kennedy to his unsubstantiated assertion.

The Citizens United decision will not stand the test of time. This destructive and indefensible decision is bound to be overturned when the current ideological makeup of the Supreme Court changes.

Campaign Finance, Democracy and Voting, Supreme Court